MARTIN, Circuit Judge:
Willis Maxi and Markentz Blanc appeal their convictions, after a jury trial, on charges relating to their participation in an extensive drug distribution network. Mr. Maxi challenges the admission of evidence he says was the product of an illegal search. Mr. Blanc challenges the admission of evidence from wiretaps as well as an instruction given to the jury about flight. After careful review, and with the benefit of oral argument, we affirm.
On July 9, 2012, the Miami-Dade Police Department received a tip from a confidential informant that a person known as "Papa D"
Officers then began surveilling the property. One officer set up to watch the house and others were positioned nearby. "[M]aybe ten or [fifteen] minutes or less" after setting up, officers saw two men leave the duplex and get into a truck. Officers stopped the truck about a quarter mile from the duplex and asked the men for identification. Mr. Blanc was the driver and Mr. Pierre was the passenger. After a search revealed no contraband, the officers let the men leave. The truck then turned immediately back toward the duplex.
When he was told the truck was returning to the duplex, Detective Ogden ordered all the officers in the area to go there as well. Detective Ogden testified: "We decided — or I decided that we should approach the residence with them there because I had a feeling that maybe they would alert the persons inside." At least five police cars, holding approximately ten police officers, pulled up to the duplex. Seeing the police approach, Mr. Blanc "took off running and was apprehended shortly after." Mr. Blanc and Mr. Pierre were both detained. They were eventually released again without being charged.
The door itself had an exterior metal security gate, with a wooden interior door behind it. The metal security gate had bars that were five to six inches apart — wide enough that Detective Ogden reached through the bars and knocked on the wooden door. Detective Ogden testified he was "pretty sure" no one announced "police" when he knocked.
Mr. Maxi opened the wooden interior door very soon after Detective Ogden knocked. Detective Ogden testified that "[d]irectly behind Mr. Maxi, [he] could see a clear mixing bowl as well as a white plate, with the plate having naked crack rocks, and the clear mixing bowl having packaged crack cocaine and a razor blade on the plate and a scrap piece of paper." Detective Ogden said these objects were approximately five to ten feet away from his position at the door.
When he saw the officers, Mr. Maxi "attempted to fade off" out of view, but Detective Ogden told him to stay where he was. Upon questioning, Mr. Maxi said he didn't live at the duplex and didn't know who did. Detective Ogden asked Mr. Maxi to step outside, but Mr. Maxi said he couldn't because the metal security gate was locked and he didn't have a key.
The officers decided to force the security gate open. Detective Ogden testified he was concerned that Mr. Maxi would destroy evidence. Once the gate was pried open, Detective Ogden pulled Mr. Maxi out of the building, and handcuffed him. Approximately five officers then conducted a protective sweep of the unit, which Detective Ogden said took about two minutes. Detective Ogden testified that during the sweep, he saw more packaged crack cocaine, a semiautomatic handgun, four rifles, and a stack of money. After the sweep, the officers left the unit and applied for a search warrant.
Before the warrant was issued but after the protective sweep, Lieutenant Luis Almaguer and another officer did a walk-through of the unit. Lieutenant Almaguer said he wanted to "verify[] what they are writing [in the search warrant application] is what they saw." He testified that the search warrant application did not rely on any of his observations from the walk-through. After the search warrant was issued, starting at around 2:00 AM, officers went back inside the unit and collected crack cocaine, guns, and Mr. Maxi's driver's license and other papers. The search concluded at 4:45 AM.
Once the search was over, Mr. Maxi was advised of his
On October 28, 2013, an FBI agent filed an application for a wiretap on Mr. Blanc's cell phone. The application described a wiretap as necessary to accomplish the goals of the investigation into the drug organization and listed a number of other investigative techniques that had been used or considered. The wiretap application was approved, and Mr. Blanc's phone was tapped from October 28 to November 26, 2013.
On November 21, 2013, more than a year after the search that led to Mr. Maxi's arrest, law enforcement executed a search warrant at 262 NW 52nd Street in Miami. A police officer saw Mr. Blanc outside the property and yelled, "Police, stop." Mr. Blanc turned and ran into the house, where he was detained. Drugs, guns, ammunition, and other evidence were also collected from this house.
On February 20, 2014, Mr. Blanc and Mr. Maxi, along with six codefendants not part of this appeal, were indicted for crimes relating to a drug conspiracy. Both were charged with conspiracy to possess with intent to distribute a controlled substance; possession with intent to distribute a controlled substance; possession of a firearm in furtherance of a drug trafficking crime; and possession of a firearm by a convicted felon. Mr. Blanc was also charged with conspiracy to commit wire fraud, aggravated identity theft, and possession of unauthorized access devices with the intent to defraud.
Mr. Maxi and Mr. Blanc both filed motions to suppress evidence based on the government's alleged violations of law. Mr. Maxi filed a motion to suppress physical evidence and his statements related to the search at the 64th Street duplex. At the suppression hearing, Mr. Maxi's attorney argued that the police approach to the duplex exceeded the scope of a permissible "knock and talk." He said Mr. Maxi did not voluntarily open the duplex door, and that each of the police's actions that followed — breaking down the door, the protective sweep, the pre-warrant walk-through, the arrest — was illegal. He also argued that Mr. Maxi's statements should be suppressed as fruit of the poisonous tree. The government opposed, arguing that Mr. Maxi did not have standing to challenge the search; the police approach to the door was permissible; and Mr. Maxi's opening of the door was voluntary. Also, the government argued that even if the officers' actions after approaching the door were impermissible, there was still sufficient information to support the search warrant because they could see crack cocaine in plain view from the door.
A Magistrate Judge issued a Report and Recommendation ("R&R") recommending that Mr. Maxi's motion be denied. The Magistrate Judge found that Mr. Maxi opened the door voluntarily and that the officers' protective sweep of the duplex was justified. The Magistrate Judge found that the pre-warrant walk-through violated the Fourth Amendment, but the crack cocaine observed by the officers in plain view once the door opened provided an independent
Mr. Blanc filed a motion to suppress the intercepted wire communications. He argued that the government had not shown "necessity to obtain or apply for interceptions in this case, and omitted material information from the Affidavit." In particular, he argued that the government's investigation had already been "exceedingly successful" before they applied for the wiretap and that the wiretap affidavit downplayed the role of the government's confidential informant.
A Magistrate Judge recommended that Mr. Blanc's motion be denied. The Magistrate Judge agreed with the statements in the affidavit that further physical surveillance, tracking devices, and use of confidential sources would not have satisfied the goals of the investigation. The Magistrate Judge also found that the "affiants did not intentionally or recklessly make material false statements or omit material facts in demonstrating the necessity of the wiretaps." The District Court adopted the R&R and denied Mr. Blanc's motion to suppress.
In preparation for trial, the government requested a jury instruction about flight be given for Mr. Blanc. Mr. Blanc objected. The District Court overruled the objection and gave the following jury instruction:
On April 21, 2015, a jury found Mr. Maxi guilty of all counts and Mr. Blanc guilty of all counts but one. Mr. Maxi was sentenced to 312-months imprisonment, and Mr. Blanc to 300-months imprisonment, both below-guideline sentences. This appeal followed.
When reviewing the District Court's denial of a motion to suppress evidence, we review findings of fact for clear error and application of law to facts
We first consider whether Mr. Maxi has standing to challenge the search of the 64th Street property. The District Court found "in an abundance of caution" that Mr. Maxi had standing. The court relied on Mr. Maxi's testimony that "he had a legitimate presence in the facility, i.e., he has the permission of the person who leases it to be there." On appeal, the government argues Mr. Maxi does not have standing to challenge the search since he was only at the duplex to package cocaine. Alternatively, the government argues Mr. Maxi abandoned any privacy interest he may have had in the duplex when he told the officers he didn't live there.
In order to have standing to seek suppression of evidence, a defendant must establish both a subjective expectation of privacy in the place searched as well as the objective reasonableness of that expectation.
Mr. Maxi gave somewhat contradictory information about his relationship to the duplex. When he first opened the door, he told police he didn't live there, didn't know who did, and didn't have a key. At the suppression hearing, he testified that he had been living at the duplex for three to six months. But he also said "I really live at my father's house," and that he wasn't at the duplex every day but "just to pay the bills only." Mr. Maxi said he kept his clothes at his father's house and only his "food stamp card, Social Security and Western Union papers" at the duplex. On cross examination, he clarified that he had lived at both the duplex and at his father's house, but that he'd been kicked out of his father's house. Mr. Maxi testified that he paid half the rent to the duplex and had a key.
We conclude that Mr. Maxi has standing to challenge the search. While this Court has recognized that a party can disclaim his privacy interest, such a disclaimer is only one factor that we weigh in our consideration of whether Mr. Maxi had a reasonable expectation of privacy in the duplex.
Mr. Maxi first argues that the police illegally entered the curtilage of the duplex when ten officers surrounded the building at night, one with his gun drawn. The government responds that the entry was permissible because the officers were conducting a "knock and talk."
The Fourth Amendment guarantees "the right of a man to retreat into his own home and there be free from unreasonable government intrusion."
The "knock and talk" rule provides that police have an owner's implied permission to "approach a home and knock, precisely because that is no more than any private citizen might do."
Also, "[t]he scope of a license — express or implied — is limited not only to a particular area but also to a specific purpose."
The reasoning in
No doubt, the officers here breached the curtilage of the duplex. There were approximately ten officers who ran to the duplex, many going through a gate in the fence, with four or five approaching the door and the rest taking up tactical positions around the exterior. Mr. Maxi did not give the officers an express license to come into his yard. And while the officers had a license "implied from the habits of the country,"
Because their actions did not qualify as a "knock and talk," the officers here did not have a license to enter the curtilage of the duplex. However, that is not the end of our inquiry. "The question whether the exclusionary rule's remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct."
Here, the constitutional violations of the officers did not result in the production of evidence. As in
Next, Mr. Maxi argues that he did not open the door voluntarily. He says "[g]iven the number of police officers on the property, the unlawful seizure and detention of two individuals while on the property, and where at least one of the officers approached the front door with his weapon drawn, a reasonable person would believe that they had no other option but to open the door." The government responds that all evidence suggests Mr. Maxi didn't know the police were at the door and that his opening of the door was consensual.
When a person opens their door "in response to a show of official authority," that act cannot be seen as consensual.
For this case, the Magistrate Judge found (and the District Court adopted the finding) that Mr. Maxi did not open the door in response to a show of authority. Detective Ogden testified that
Mr. Maxi argues that the police committed another constitutional violation when they broke down the metal security gate and arrested him in his home without a warrant. The government responds that the warrantless arrest was supported by probable cause that Mr. Maxi had committed a crime (packaged crack cocaine was visible from the front door) and by exigent circumstances based on officer safety and the risk that evidence would be destroyed.
"A finding of probable cause alone... does not justify a warrantless arrest at a suspect's home."
Mr. Maxi's warrantless arrest was supported by both probable cause and exigent circumstances. Detective Ogden could see a substantial quantity of drugs behind Mr. Maxi when Maxi opened the door, and Ogden had received a tip that several guns were also located somewhere in the unit. There was a risk that the evidence he saw would be destroyed if the police left the duplex to get an arrest warrant. And because the officers could not see inside the unit's other room, they did not know whether other people were in the unit. Mr. Maxi suggests that the police should have handcuffed him to the metal security gate or held him at gunpoint while they waited for an arrest warrant. We are not persuaded. As it was, Mr. Maxi was behind a locked metal gate, out of reach of the police. The officers had probable cause to believe Mr. Maxi committed a crime, and it was objectively reasonable for them to think exigent circumstances existed to justify their entry and arrest without a warrant.
Mr. Maxi also challenges what happened after the officers broke down the security gate and arrested him. More to the point, he argues that the officers' protective sweep and Lieutenant Almaguer's walk-through of the duplex were both unlawful. The government responds that even if the officers' actions after Mr. Maxi opened the door were illegal, the search warrant was adequately supported by an independent source.
"The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation."
Even if the protective sweep and walk-through were illegal,
Last, Mr. Maxi argues that his later statements to police should be excluded as fruit of the poisonous tree. Statements that are the fruit of an illegal search must be excluded.
Mr. Blanc makes two claims on appeal. First, he argues that the District Court erred in admitting evidence gathered using wiretaps. Second, he argues that the District Court erred in providing a jury instruction on flight.
Mr. Blanc argues that the District Court erred in not suppressing evidence from two wiretaps because the "necessity" requirement was not met. He says the government failed to exhaust other investigative methods and argues that surveillance, vehicle GPS tracking, or further use of confidential sources would have accomplished
The government affidavit in support of a wiretap must include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. 2518(1)(c). This "necessity requirement is designed to ensure that electronic surveillance is neither routinely employed nor used when less intrusive techniques will succeed."
The District Court did not clearly err in deciding that the government made an adequate showing of necessity.
Mr. Blanc also argues that the District Court erred in not suppressing evidence from the wiretaps because the affidavit omitted material facts and relied on affiants who intentionally or recklessly made material false statements. In particular, Mr. Blanc says it was error not to disclose that the confidential source was a former lieutenant in the drug organization and a lessee of one of the stash houses.
An application for a wiretap must be supported by probable cause.
Mr. Blanc fails to show that the omissions he identified were made intentionally or recklessly, or that if the identified additional information had been included, it would have undermined a finding of probable cause. We affirm the District Court's decision denying Mr. Blanc's motion to suppress.
At trial, the government requested that the jury be instructed on flight, relating to two separate incidents: (1) Mr. Blanc running from the truck when the police followed him back to the 132 NE 64th Street duplex where Mr. Maxi was arrested; and (2) Mr. Blanc running back into the building when the police executed a search warrant at 262 NW 52nd Street. Mr. Blanc objected, but the court overruled his objection and gave the requested flight instruction.
We review a district court's decision to give a particular jury instruction for abuse of discretion.
"Evidence of flight is admissible to demonstrate consciousness of guilt and thereby guilt."
The District Court did not abuse its discretion in giving the flight instruction. In general, this Court has long upheld the use of a flight instruction.
We affirm the convictions of Mr. Maxi and Mr. Blanc in their entirety.